1. § Az Országgyűlés e törvénnyel felhatalmazást ad a Magyarország Kormánya és a Kínai Népköztársaság Kormánya között a Budapest-Belgrád vasútvonal újjáépítési beruházás magyarországi szakaszának fejlesztése, kivitelezése és finanszírozása kapcsán született Egyezmény (a továbbiakban: Egyezmény) kötelező hatályának elismerésére.
2. § Az Országgyűlés az Egyezményt e törvénnyel kihirdeti.
3. § Az Egyezmény hiteles angol és magyar nyelvű szövege a következő:
The Government of Hungary and the Government of the People’s Republic of China (hereinafter jointly referred to as the Parties, separately referred to as the Hungarian Party or the Chinese Party or Party,
with regard to the Memorandum of Understanding signed on December 17, 2014, the cooperation minutes signed on January 14, 2015, July 16, 2015 and November 19, 2015 by the National Development and Reform Commission of the People’s Republic of China, the Ministry of Foreign Affairs and Trade of Hungary and the Ministry of Transport, Construction and Infrastructure of the Republic of Serbia;
considering that Hungary is a member of the European Union;
taking also into account the laws and international obligations of the Parties, including Hungary’s obligations deriving from its membership in the European Union;
with respect to the intention of the Parties to further develop and promote their economic cooperation based on the mutual advantages;
with regard to the fact that Hungary and the People’s Republic of China intend to complete the Project jointly based on the technical, financial and other aspects and circumstances;
on the basis of mutual economic advantages;
taking into account the Parties’participation in the completion of the Project as well as in the determination of the financing terms having comprehensive regard to both the Hungarian and the Chinese national economic interests;
have agreed as follows:
1. Within the framework of the basic aim of the Contracting Parties, the reconstruction of the Budapest-Belgrade railway line, the Parties cooperate for the development of a new, double track, 225 kN axle load electrified railway on a length of 159.4 km with ETCS2 on railway line No. 150 between Budapest-Ferencváros and Kelebia border with a geometry fit for 200 kms per hour speed which is able for the traffic of trains with a maximum length of 740 metres in a compatible manner with the technical standards of the European Union with an operational speed of 160 kms per hour. (hereinafter: the Project).
2. The railway line and the associated structures to be completed under the framework of this Treaty, as well as the equipment required for the operation of the railway line, as parts of the national core railway system shall become the exclusive property of the Hungarian State and be managed by the MÁV Magyar Államvasutak Zártkörűen Működő Részvénytársaság (Hereinafter: MÁV Zrt.), according to the applicable Hungarian regulations.
1. For the performance hereof, both Parties appoint their competent authorities (hereinafter: Competent Authority) and their designated organisations collaborating in the preparation, completion and - in the case of the Chinese Party - the financing of the cooperation hereunder (hereinafter: Designated Organisations)
(1) On behalf of the Hungarian Party, the competent authority regarding strategic questions of the completion of the Project is the Ministry of National Development, as the ministry responsible for transport (hereinafter: Hungarian Competent Authority)
(2) On behalf of the Hungarian Party, the designated organisations (hereinafter: Hungarian Designated Organisations) are
1. Ministry for National Economy as a ministry responsible for public finances, government organisation acting on behalf of the Hungarian State as debtor.
2. MÁV Zrt., as the Employer acting in the name and on behalf of Hungary that orders the Project, that performs and exercises the rights and obligations undertaken.
(3) On behalf of the Chinese Party, the competent authority regarding strategic matters of the completion of the Project is the National Development and Reform Commission of People’s Republic of China, (hereinafter: Chinese Competent Authority)
(4) On behalf of the Chinese Party, the designated state organisations and state owned corporations participating in the preparation, financing and completion of the Project are (hereinafter: Chinese Designated Organisations)
1. CHINA RAILWAY International Corporation Ltd. (hereinafter: CRIC), as a Chinese shareholder of the general contractor (hereinafter: General Contractor) appointed in Article 6 hereof.
2. Export Import Bank of China (hereinafter: China Exim Bank), as an institution providing credit facility for the completion of the Project.
2. The Parties shall establish a Project Establishment Working Group for the exhaustive negotiation of strategic questions relating to the completion of the Project.
3. The Project Establishment Working Group shall be co-chaired by one delegate from the Chinese Competent Authority, and one delegate from the Hungarian Competent Authority respectively. There will be at most 5 (five) delegates of the Hungarian Competent Authority and the Hungarian Designated Organisations, and at most 5 (five) delegates of the Chinese Competent Authority and the Chinese Designated Organisation in the Project Establishment Working Group.
1. The Parties agree to cooperate and shall use all efforts to make the participants of the Project mentioned in Article 2 hereof to cooperate for the completion of the Project.
2. The Parties shall use all efforts to ensure that their Competent Authorities and Designated Organisations perform the obligations undertaken by the Party appointing them within the framework of the cooperation under this Treaty.
3. The Parties shall use all endeavours to ensure that the participants of the Project conclude the agreements stipulated in this Treaty until the deadline and under the conditions stipulated hereunder.
4. The Parties shall use all efforts to overcome any obstacle or difficulties arising in connection with the completion of the Project as quickly as possible.
5. The Parties shall make available the information that is connected to the completion of the Project in due time to allow the completion of the Project until the deadline approved by the Parties, especially the performance of their responsibilities undertaken hereunder.
6. Parties may use the information transferred between each other under this Treaty exclusively for the completion of the Project as defined hereunder.
7. None of the information generated throughout the cooperation under this Treaty shall be disclosed to any third party without the prior written consent of the Competent Authorities of both Parties.
8. Classified information of either Hungary or the People’s Republic of China shall not be transferred within the framework of this Treaty. Under the framework of this Treaty, no information shall be transferred, the transfer of which is prohibited by the laws of either Party, or prohibited by any international treaty signed by the Parties. It is not allowed to disclose or transfer to any third party without the prior written consent of both Parties any information that is transferred under this Treaty, or arise as a result of the execution hereof.
9. Under the framework of this Treaty, the Competent Authority or Designated Organisation of either Party may not deny the transfer of the information, which is prescribed by law binding to the Competent Authority or Designated Organisation in question, or ordered by a court having jurisdiction. In such case, the Party, the Competent Authority or Designated Organisation that transfers the information shall cooperate in good faith with the other Party, the Competent Authority or Designated Organisation, in order to transfer the information in a form which ensures that the information transferred be limited to the extent prescribed in the relevant laws or judgment, and is acceptable for the other Party, the Competent Authority or Designated Organisation.
10. Nothing hereunder shall prejudice the obligations resulting to the Parties from other international treaties to which they are parties. Accordingly, the provisions of this Treaty shall not be invoked or interpreted either wholly or in part as provisions superseding, modifying or, in any other way, influencing the obligations resulting to Hungary from the Treaties establishing the European Union.
11. The Parties shall make every reasonable arrangements prescribed by their laws to protect intellectual property acquired and/or used during the execution of this Treaty, including manufacturing secrets (know how).
12. The Parties, the Competent Authorities, the Hungarian Designated Organisations, the Chinese Designated Organisations, the General Contractor and its subcontractors shall inform each other in due time about any result that is subject to protection by intellectual property law under the Parties’ jurisdiction, and shall cooperate in order to launch an official procedure to ensure the protection of such intellectual property.
13. The Parties’ cooperation under this Treaty shall not affect the intellectual property right of the Parties’ and Competent Authorities, those of the Hungarian Designated Organisations, Chinese Designated Organisations, the General Contractor and the subcontractors employed thereby, that was acquired before the commencement of the common activity under the present Treaty; or that is a result of their individual activity or research, and the exercise whereof is essential for the completion of the Treaty (hereinafter: Previous Intellectual Property). The transfer of the exclusive rights or the grant of the use of the Previous Intellectual Property shall be governed by the laws of the Parties. The transfer of documents containing the results of intellectual activities or the information relating to such results, shall not in any case mean the acquisition of exclusive rights relating to such results.
14. The Hungarian Designated Organisations and the Chinese Designated Organisations following the procedure agreed upon with the Competent Authorities, shall agree in writing on the conditions of use of the results of the common intellectual activity under this Treaty, and the use of rights relating thereto. Until the execution of such agreements, the common results of intellectual activity exercised under this Treaty may only be used for the purpose of this Treaty, and the Parties, the Competent Authorities and the Hungarian Designated Organisations and Chinese Designated Organisations, the General Contractor and its subcontractors may not individually use them and/or may not exercise rights for such results.
15. The Chinese Party may use the results of the intellectual activity and the documented information that is made available to it by the Hungarian Party on data carriers related to the production of parts, wear parts and the production of the reparation devices exclusively for the purposes of this Treaty.
16. The Parties undertake to comply with the technical requirements of the European Union or equivalent therewith throughout the completion of the Project.
1. According to the requirements for the General Contractor, the Chinese Party directly or through the Chinese Designated Organisations ensures that the machinery, equipment, and materials required for the performance by the General Contractor comply with the technical standards of the European Union, or are equivalent therewith.
2. The Chinese Party ensures that the financial capacity necessary for the due performance of the General Contractor’s duties are available in the proportion of the shares held by the Chinese side in the General Contractor.
3. According to the requirements of the General Contractor, Chinese Party directly or indirectly - by the Chinese Designated Organisations - ensures that the personal requirements for the Performance of the General Contractor are fully met in accordance with the provisions of this Treaty.
1. Subsequent to the conclusion of the Construction Contract, the Hungarian Party ensures through the Hungarian Designated Organisations that:
(1) basic technical data required for the completion of the Project shall be available to the Chinese Designated Organisations and the General Contractor;
(2) During the preparation phase of the Project, the routing procedure be conducted properly;
(3) During the preparation phase of the Project, MÁV Zrt. shall arrange for
(i) the related archaeological and environmental protection documentation,
(ii) the preparation and amendment of development and regulation plans,
(iii) the preparation of the expropriation plans relating to the real properties concerned by the route,
(iv) the conducting of the expropriation procedures,
(v) the legal preparations of the Project,
(vi) conclusion of further agreements as may be required for the preparation of the Project as stipulated above and
(vii) the obtainment of proper title for the use of the real estate required for the completion of the Project
(4) MÁV Zrt. shall closely cooperate with CRIC and the General Contractor upon the preparation of the building permit documentation and the construction drawings.
(5) All other tasks shall be performed to which, under the relevant laws of Hungary, exclusively the Hungarian Party or the Hungarian Designated Organisations are entitled.
2. The Hungarian Party shall arrange for the Project to be qualified as a priority development for the national economy in Hungary.
3. The Hungarian party shall be responsible for the financing of the preparation tasks of the Project that shall be part of the Construction Contract value.
1. The Parties appoint as the General Contractor to complete the Project a non-profit joint venture to be established by MÁV Zrt., CRIC and China Railway International Group Limited (hereinafter: CRIG) under the laws of Hungary. The General Contractor shall act as a management team of the Project. The Parties shall pay attention that the related parties of the shareholders of the General Contractor not be excluded from the procurements of the General Contractor, provided they fully comply with the relevant legal regulations, with special regard to the conflict of interest.
2. The Parties use their best efforts to ensure that MÁV Zrt. as the Employer and the General Contractor conclude an agreement on the completion of the Project (hereinafter: Construction Contract).
3. The company form of the General Contractor shall be closed company limited by shares. The General Contractor shall be obliged to perform all of its obligations under the Construction Contract through service providers procured under the Procurement Policy defined in Article 7, paragraph 5 hereof, except for the ancillary services provided by MÁV Zrt. as a shareholder of the General Contractor. The General Contractor and its shareholders will not directly participate in the completion of the Project, accordingly. Legally adequate subcontractors’ performance guarantees and retention guarantees shall be provided directly to the Employer as the security of the General Contractor performance.
4. The Parties agree that
a. the MÁV Zrt. shall hold 15% (Fifteen percent) of the equity shares and 15% (fifteen percent) of voting rights
b. the CRIC and CRIG shall hold altogether 85% (Eighty-five percent) of the equity shares and 85% (Eighty-five percent) of voting rights
in the General Contractor company.
5. The Parties agree that one member of the Board of Directors and one member of the Supervisory Committee of the General contractor be elected upon delegation by the Hungarian Party.
6. The Parties agree that the General Contractor shall be entitled to procure legal and audit services after consultation and agreement with the Chinese Party only from a service provider appointed by the Hungarian Party.
7. The Construction Contract value shall also cover the necessary project management costs arisen on the side of the General Contractor for the completion of the Project.
1. The Parties agree to finance the completion of the Project through a credit facility provided in line with a credit facility agreement (hereinafter: Facility Agreement) between the China Exim Bank as the lender and the Ministry for National Economy representing the Hungarian Party. The facility may only be used for financing the Project.
2. The Chinese Party shall ensure that the financing stipulated in paragraph 1 of this Article shall be available to the Hungarian Party in an amount of up to 85% (Eighty-five percent) of the Construction Contract value.
3. The Chinese Party ensures that the terms of the Facility Agreement shall be favourable for the Hungarian Party and will have a positive overall impact on the net economic return of the Project. The terms and conditions shall be negotiated and confirmed after Construction Contract is concluded.
4. The Parties shall cooperate throughout the preparation of the Project.
5. The General Contractor shall conduct its procurements throughout the completion of the Project in accordance with the Procurement Policy to be elaborated and approved by the Parties and the approval of which as an attachment of this Treaty by both Parties is a precondition of the entry into force of this Treaty.
6. The Hungarian Party shall provide assistance to the number of Chinese Employees which are necessary for the completion of the project to get Residence and Working Permits.
7. The equipment, machinery, materials and technologies that will be imported to Hungary within the framework of the Project shall meet the standards of the European Union and those of Hungary.
Any disputes arising out of or in connection with the performance of this Treaty shall be determined through negotiation between the Hungarian Competent Authority and the Chinese Competent Authority. If consensus cannot be reached, the two parties shall settle the disputes through the diplomatic channel.
1. The Parties shall notify each other in writing through the diplomatic channel of the completion of their constitutional and legal procedures for the entry into force of this Treaty. Without prejudice to Article 7, paragraph 5 hereof, this Treaty shall enter into force on the 30th (thirtieth) day reckoned from the date of the last notification.
2. This Treaty is concluded for an indefinite period of time but shall be effective only until the Project is completed.
3. If, due to circumstances occurring after the conclusion of this Treaty, the performance of the stipulations hereunder with unchanged terms and conditions would injure a significant interest of either Party, the Party concerned may terminate this Treaty by notice.
4. The Party entitled to terminate this Treaty may terminate this Treaty by written notice given to the other Party through diplomatic channels. In this case the Treaty shall cease to exist after the expiry of 1 (one) year reckoned from the receipt of such notice.
5. After receipt of such notice of termination by either Party, the Parties shall start negotiations without delay on the possibilities of completion of the Project defined herein.
6. The Parties shall be entitled to amend or supplement this Treaty with mutual agreement in writing by written notice given to each other through diplomatic channels. Such amendments or supplements shall enter into force according to the process regulated in this Article.
Done at Suzhou, this 24th day of November, 2015, in duplicate in the Hungarian, Chinese and English languages, either texts being equally authentic. In case of disputes the English text shall prevail.
| for the Government of Hungary|| for the Government of the People’s Republic of China|
|ANNEX||to the treaty concluded between the Government of Hungary and the Government of||9|
|the People’s Republic of China about the development, construction and financing of the Hungarian section of the Budapest-Belgrade railway line||9|
|II.1.||BASIC PRINCIPLE OF THE PROCUREMENT PROCEDURE||10|
|II.2.||THE PURPOSE OF THE POLICY||10|
|II.3.||THE SCOPE OF THIS POLICY||11|
|II.5.||DEFINITIONS, INTERPRETATIVE PROVISIONS||11|
|III.||GENERAL RULES FOR PREPARING AND CONDUCTING PROCUREMENT PROCEDURES||15|
|III.1.||COMMON RULES FOR PROCUREMENT PROCEDURES||16|
|III.1.1.||GENERAL LIABILITY OF THE PERSONS AND ORGANISATIONS PARTICIPATING IN THE PROCUREMENT PROCEDURE|| |
|III.1.2.||COMMUNICATION AND PUBLIC DISCLOSURE DURING THE PROCUREMENT PROCEDURE||17|
|III.1.3.||CONFLICT OF INTEREST||18|
|IV.1.||PREPARING THE PROCUREMENT PROCEDURES||19|
|IV.1.1.||PREPARING THE PROCUREMENT PROCEDURES - market research||19|
|IV.1.2.||PREPARATION OF THE PROCUREMENT PROCEDURES - Setting up the Evaluation Committee||19|
|IV.1.3.||PREPARING THE PROCUREMENT PROCEDURES - Work of the Evaluation Committee||21|
|IV.2.||COMMENCEMENT THE PROCUREMENT PROCEDURE||23|
|IV.3.||CONDUCTING THE PROCUREMENT PROCEDURE||25|
|IV.4.||CLOSING THE PROCUREMENT PROCEDURE, SIGNING THE CONTRACT||26|
|VII.||SUCCESS OF THE PROCUREMENT PROCEDURE||28|
|VIII.||DOCUMENTATION OF PROCUREMENT PROCEDURES, KEEPING THE DOCUMENTS OF PROCUREMENT PROCEDURES|| |
|IX.||MONITORING OF THE PROCUREMENT PROCEDURES, RIGHT TO ACCESS THE DOCUMENTS||29|
|X.||SPECIAL POLICY FOR ELIGIBLE TYPES OF PROCEDURE||29|
The Contracting Authority (hereinafter referred to as the „Contracting Authority”) guarantees to its partners and its Bidders that it pursues a predictable and consistent Procurement Policy. This Procurement Policy (hereinafter referred to as the „Policy”), which is based on ensuring equal opportunities for Bidders and the principle of fair competition, ensures the transparency of the procurement processes and a discrimination free competition.
The Contracting Authority, in the course of its procurements, will ensure the transparency and full disclosure of its processes; moreover, it will enforce the principle of the security of supply and the principles of efficiency and responsible management.
The objective of preparing this Procurement Policy is to record the procurement rules that are connected to the international Budapest-Belgrade Railway reconstruction project, which will guarantee that the participants in the procedure will receive unambiguous information on their Procurement Procedure-related rights and obligations, and also that the procurements will be implemented with an efficient and appropriate use of funds and by minimising the administrative burden of those parties participating in the procurements.
II. GENERAL PROVISIONS
II.1. BASIC PRINCIPLE OF THE PROCUREMENT PROCEDURE
In the course of the Procurement Procedure, the Contracting Authority shall be required to ensure and economic operators shall comply with the requirements of fairness, transparency and openness of competition.
The Contracting Authority shall ensure equal opportunities and equal treatment for economic operators.
In the course of the Procurement Procedure, the Contracting Authority and the economic operators shall be required to act in line with the principles of good faith and fairness. Misuse of rights is forbidden.
In the course of using the Project funds, the Contracting Authority shall act in line with the principles of effective and responsible financial management.
If the Policy fails to provide detailed provision on an issue, it shall be resolved in view of the basic principles stipulated in this Policy, and the relevant provisions of Section 2 of the Interpretative Communication No 2006/C 179/02 of the European Commission.
II.2. THE PURPOSE OF THE POLICY
This Policy sets out, with the aim of complying with the transparency requirement the scope of responsibility of the persons and organisations involved in the Procurement Procedures, and acting on behalf of the Contracting Authority in the preparation and conduction of the Procurement Procedures and the documentation order of the Procurement Procedures.
The Contracting Authority appoints in this Policy the person, persons or bodies that shall be responsible for the decisions to be made in the course of the procedures.
II.3. THE SCOPE OF THIS POLICY
1. PERSONAL SCOPE
The personal scope of this Policy covers all persons and organisations participating in any manner and at any level in the preparation and conduction of the Procurement Procedures for the Project.
Any person or organisation that participates in, contributes to or acts under any legal title in the course of the Procurement Procedures that are subject to this Policy shall be required to act in the interest of implementing the goals set out in the international treaty relating to the Project (hereinafter referred to as the „Treaty”).
2. MATERIAL SCOPE
The material scope of this Policy covers all procurement subjects (supply contracts, services contracts, public works contracts) that are necessary for the implementation of the Project.
3. TEMPORAL EFFECT
This Policy will enter into force upon the entry into force of the Treaty signed by the Parties on 24 November 2015. Its provisions shall apply for the Procurement Procedures commencing after this date.
II.4. RELATED DOCUMENTS
The Policy shall be required to be applied in line with the legal provisions in force that are applicable to the Contracting Authority and in accordance with the provisions of the Treaty dated on 24 November 2015. This Policy shall constitute an annex to the Treaty dated on 24 November 2015.
II.5. DEFINITIONS, INTERPRETATIVE PROVISIONS
„Contracting Authority”: shall mean the General Contractor, as specified in the Treaty.
„Bidder”: shall mean an economic operator or, in case of joint bids economic operators, who submit either a valid or an invalid offer in the course of the Procurement Procedure.
„Subcontractor”: shall mean an economic operator, who participates directly as being involved by a Bidder in performing the contract that is concluded as the result of the Procurement Procedure, except for
a) an economic operator who performs its activity on the basis of an exclusive right,
b) a manufacturer, a distributor, a seller of components or basic materials intended to be engaged in the performance of the contract,
c) with regard to a public works contract, the vendor of building material;
„Organisation participating in certifying eligibility”: the Candidate or the Bidder may also rely on the capacity of other person(s) or other organization(s) with regard to the relevant contract, regardless of the legal nature of their relationship.
„Estimated value”: shall mean the total consideration required for the subject of procurement upon the commencement of the procurement, i.e. all costs, fees, purchase price, etc., which the Contracting Authority is required to pay for the subject of procurement, exclusive of the VAT. In the event of a call for proposals containing an optional part, the total consideration shall include, in addition to the consideration covering the entire technical content of the procurement, the value of the optional part as well. The estimated value is not the same as the financial coverage available and it is not the same consideration to be provided by the Contracting Authority appearing in the Public Procurement contract or the projected figure that is developed in the course of the internal planning.
„Evaluation Committee”: a professional body of at least seven members appointed by the Board of Directors of the Contracting Authority that participates in the preparation of procurement and in implementing the Procurement Procedure, especially in the evaluation of the Candidates (those applications that still do not contain any bids) or in the evaluation of the bids.
„Permanent Members of the Evaluation Committee”: shall mean the members with legal, financial and procurement expertise corresponding to the subject of the procurement. A person, for whom a conflict of interest reason according to Clause III.1.3. herein exists shall not be a member of the Evaluation Committee. The person making the decision closing the procedure on behalf of the Contracting Authority shall not be a member of the Evaluation Committee. Where the decision is made by a body, the Decision Maker may only delegate a person with consultative status into the Evaluation Committee. Where decisions are made by a body, a roll call vote shall apply.
„Procurement Documentation”: shall mean the Call for Proposals, documentation or contract notice that is prepared by the Procurement Agent, and approved by the Evaluation Committee in the preparatory phase of the Procurement Procedure, corresponding to the type of the selected Procurement Procedure, which covers the comprehensive technical, or professional, economic and financial specification of the subject of procurement, and all the conditions of the call for proposals. This term shall cover all the documents that are needed for the commencement of the Procurement Procedure, thus especially the documents certifying the availability of funds (a declaration of intent or financial commitment is sufficient), the technical specification, the draft contract or the contractual terms and conditions, as well as the contract notice to be published. „Preparation of the Procurement Procedure”: shall mean the phase from the signing of the document on the „decision on the commencement of the Procurement Procedure” by the Decision Maker until the commencement of the actual Procurement Procedure.
„Start of the Procurement Procedure”: shall mean, in a Procurement Procedure starting with the publication of a contract notice, the time when the contract notice on the commencement of the Procurement Procedure is announced for publication, in the event of direct delivery of the Call for Proposals to Bidders, the date when the Call for Proposals are sent out, hereinafter jointly: „Announcement”.
„Closure of the Procurement Procedure”: shall mean the publication of the Procurement Procedure’s outcome, or, if a contract is signed, the publication of that fact.
„Closing document of the Procurement Procedure”: shall mean a summary that contains the list of all the procedural events in the Procurement Procedure, as well as the outcome of the Procurement Procedure. „Procurement Subjects”: Supply: shall mean a contract for consideration, under which the Contracting Authority will acquire the ownership right or the right of usage or utilisation of a marketable movable property that may be taken into possession - with or without an option to buy. The supply contract includes the installation and commissioning of the goods.
„Procurement subjects”: Public works contract: a contract for consideration, under which the Contracting Authority will order and take over the implementation task of „constructing a building” or „constructing and designing a building”. Furthermore, the construction of a building corresponding to the requirements defined by Contracting Authority by any means or any methods shall be deemed as a public works contract. „Procurement subjects”: Service contract: a contract for consideration other than a supply contract or a public works contract, the subject of which is particularly the order of an activity by the Contracting Authority. „Combination of procurement subjects”: where a mixed Procurement Need, i.e. a combination of the above-described procurement subjects occurs, the procurement subject shall be specified on the basis of the main subject being dominant for the procedure from the technical point of view, and the rules applicable to this subject shall apply.
„Requestor, who has expertise corresponding to the subject of procurement”: shall mean the person or organisation with a professional expertise with regard to the relevant Procurement Need.
„Decision Maker”: shall mean the person or body appointed by the Hungarian Competent Authority and the Chinese Competent Authority under the Treaty in the preparatory phase of the Procurement Procedure. For works contracts above the threshold of EUR 5,000,000, for service contract and the supply contracts above the threshold of EUR 1,000,000, it shall be a mandatory body.
„Electronic form”: where a given Call for Proposals provides the opportunity, then Bidders are allowed to submit in electronic form their bid, or any record or document requested in the given procedure that not need to be a hard copy.
„Preliminary Market Consultation”: shall mean the preliminary consultation, before the commencement of the Procurement Procedure, conducted by the Contracting Authority with independent experts, authorities and/or market actors, in the interest of the preparation of the Procurement Procedure and informing the economic operators as regards the planned procurement and its requirements.
„Interested Economic Operator”: shall mean an economic operator, who is a legal entity on its own rights and indicates its interest at the Contracting Authority as set out in the given Call for Proposals.
„Coverage”: shall mean the financial resources available to the Contracting Authority, from which it intends to implement a given procurement. The coverage of a given procurement cannot exceed the estimated value of the given procurement.
„Call for Proposals”: shall mean an invitation compiled in the interest of initiating the Procurement Procedure, containing all the necessary information upon which the Bidder(s) will submit bids in line with its contents, and, in the event of a two-phase procedure, an invitation during the first phase to submit an application to participate.
The types of Call for Proposals to initiate a procedure:
- published via a Contract Notice,
- sent directly to Bidders.
„Contract Notice”: in line with the decision of the Contracting Authority, the Call for Proposals that shall be published in TED, the Hungarian Official Journal or the website of the Contracting Authority, or a combination of these.
„Requestor”: shall mean the person or organisation appointed by the Contracting Authority in the course of the preparatory phase of the Procurement Procedure, who will compile the technical and professional content of the given Procurement Procedure. A Requestor shall not be a Bidder or subcontractor, or an organisation participating in certifying eligibility.
„Unrealistic commitment”: where a bid submitted in the course of the given Procurement Procedure contains unrealistic commitments relating to any of the evaluation criteria in view of the subject of the contract to be concluded.
„Framework agreement”: where the Contracting Authority has agreements for the same procurement object with several partners at the same time. When a Procurement Need occurs, all partners with a framework agreement shall be invited, in an identical manner, to submit a bid.
„Extraordinarily low bidding price”: where a bid, in view of the subject of the contract to be concluded, contains an unrealistically low amount, as compared with the Coverage, in respect of the price or cost taken into consideration as a valuation view-point or any of their elements which serve as an independent evaluation criterion. Unless the Call for Proposals launching the Procurement Procedure otherwise provides, a bidding price shall qualify extraordinarily low if it is 20% lower than the Coverage.
„Interim decision”: shall mean the decisions of the Contracting Authority’s Decision Maker made in the course of the Procurement Procedure, if there is a participation phase, then the decision on the unsuccessfulness of this phase or disqualifying or excluding either the bid of the Bidder or the application of the Candidate, the decision on the ineligibility of either Candidate or the Bidder, provided it is necessary prior to the Closing Decision.
Moreover, based on the judgement of the Procurement Agent or the Evaluation Committee, it shall be possible to request an interim decision on a modification that involves an element of the Procurement Documentation influencing the bidding; in the event of a negotiation-based procedure, on the approval of the modification of the modified final contractual terms and conditions, on the extension of the deadlines, on the outcome of the participation phase that did not lead to the exclusion of the Candidate or on the withdrawal of the Procurement Procedure.
Decisions on declaring a bid invalid, excluding a Bidder or declaring them as ineligible shall be passed without delay, but within 5 (five) working days at the latest. Such decisions shall be communicated to the Candidate or Bidder within 1 (one) working day.
„Procurement Agent”: shall mean a person either employed by the Contracting Authority or an external person or an organisation engaged by the Contracting Authority responsible for the full completion of the Procurement Procedure. In any specific Procurement Procedure only one Procurement Agent shall be appointed at in the same time.
„Closing decision”: shall mean the decision establishing the outcome of the Procurement Procedure; in this context, declaration of the validity/invalidity of the bids that had been received and judged or evaluated according to the evaluation criteria; establishing the success/unsuccessfulness of the procedure; establishing the winning Bidder or, if applicable, the Bidder that submitted the second most favourable bid.
„Technical specification”: shall mean a part of the Procurement Documentation; containing the specific Procurement Need as compiled by the Requestor. The Requestor shall assume liability to compile and send the technical documentation to the Procurement Agent in a way that the provisions of it will only contain specific requirements for the type of the specific Procurement Subject in exceptionally justified cases and, in the interest of ensuring fair competition, they will make it possible to the greatest extent to submit proposals that are equivalent to the stipulated content, in a way by precisely specifying the requirement of equivalence. In the case of a public works contract, it shall be mandatory to give the technical specification based on the professional standards specified by the Contracting Authority, with a detailed budget.
„Market research”: shall mean requesting bids of an informative nature by the Contracting Authority concerning the subject of procurement from market actors, not earlier than six months before the commencement of the Procurement Procedure, with the purpose of being able to establish, in the most reliable manner, the best cost-benefit ratio solution available on the market.
„Aggregation obligation”: the Requestor shall be required to indicate its Procurement Need by keeping in mind the following aggregation rules:
When adjudging whether there is a single public works contract, the unity of the economic and technical function shall be a decisive criterion with the condition that the technical needs included in one building permit cannot be divided into parts.
The elements of a project consisting of several phases shall be evaluated separately as public works contracts if they are capable of performing a full value and independent technical-economic function individually, i.e. the phases perform their functions independently as well.
With regard to supply contracts, the similarity of the goods shall be the decisive criterion in the existence of a single procurement. Where goods serve a single purpose and, in addition to this, they are also similar as regards their contents or they are capable of performing a function jointly, these needs shall be aggregated. With regard to service contracts, the aggregation obligation exists if the procurement of the services serves a single common purpose and the services are similar in their content.
„Project”: shall mean the Project defined in the Treaty.
„Procurement needs of extraordinarily minor economic significance”: shall mean procurements where the value of the procurement does not exceed 30% of the value limits relating to the scope of the procurement set out in Chapter III.A of the present Policy. The Evaluation Committee shall decide on the particular Procurement Procedure.
„Application to Participate”: shall mean, in the event of a two-phase procedure, the application submitted in the first phase, not containing a bid.
„Candidate”: shall mean the economic operator or, for joint applications, economic operators filing an Application to Participate.
„Own implementation”: shall mean all activities to be carried out by the Bidder independently, using its own resources and without involving any external resources.
„Clarification Questions”: shall mean questions received after the commencement of the Procurement Procedure but before the actual Submission Deadline from the economic operators who are interested in the Procurement Procedure, and which the Contracting Authority shall answer within a sufficient time for the Bidders to still have an opportunity to take the answer into consideration in the course of preparing their application to participate or their bids. If an answer to be given to a question that is received before the Submission Deadline substantially influences the submission of the bids, in the opinion of the Contracting Authority, the Contracting Authority may answer it provided that the bid Submission Deadline is extended by a minimum of five days. The Contracting Authority shall stipulate the method of submitting the Clarification Questions and the method of answering them and setting the deadline for the submission of such questions in the Call for Proposals. The clarification questions may be answered by the Contracting Authority through consultation and/or site inspection, as set out in the Call for Proposals.
„Procurement for Consideration”: shall mean a procurement for which a consideration is paid and not a free procurement. Lack of profit shall not render the procurement free.
III. GENERAL RULES FOR PREPARING AND CONDUCTING PROCUREMENT PROCEDURES
The Contracting Authority shall be required to carry out the Procurement Procedure, with regard to all of its procurements for consideration, in line with the following:
- III.A.) where the given Procurement Need reaches or exceeds the threshold of EUR 5,000,000 net (excluding VAT) for public works contracts, the threshold of EUR 200,000 net (excluding VAT) for other Procurement Subjects or where the Contracting Authority so decides in advance, it may be conducted according to one of the Procurement Procedures that are described in Points X.1. to X.4 of this Procurement Policy, provided that the Procurement Procedure regulated in Chapters X.3 and X.4 shall only be applicable where all preconditions stipulated in Clause IV.2.2 are met.
- III.B.) where a Procurement Need below the thresholds specified in Clause III.A of this Policy but in excess of 30 per cent of that threshold occurs, the Procurement Procedure described in Clause X.5 of this Procurement Policy shall be followed,
- III.C.) where Procurement needs of extraordinarily minor economic significance occur, the Procurement Procedure that is described in Clause X.6 of this Procurement Policy shall be followed.
III.1. COMMON RULES FOR PROCUREMENT PROCEDURES
All participants and decision makers shall be required to ensure they observe the conflict of interest and confidentiality rules and those principles stipulated in this Policy that are connected to the Procurement Procedure.
The Procurement Procedure shall not be public before its commencement. In the course of the preparatory phase of the Procurement Procedure, it shall be forbidden to disclose any information on any Procurement Procedure.
After the commencement of the Procurement Procedure, information may be disclosed exclusively in writing and exclusively, simultaneously and with identical content, to those economic operators who indicated their interest in participating in the procedure, in a manner corresponding to the provisions of the Procurement Procedure.
After the commencement of the Procurement Procedure it shall not be possible to switch from one procedure type to another.
The Invitation to the Procurement Procedure must contain, in each case, the evaluation aspect(s). The bid price shall be a mandatory evaluation criterion in every case. The evaluation criteria shall not include any subjective elements.
It shall not be possible to conduct simultaneously several Procurement Procedures for the same Procurement Need.
In the course of the Procurement Procedure, each notification, and the entire communication may be performed exclusively in writing, to or from the contact points, as specified by the Contracting Authority in the Call for Proposals. Communication methods deviating from this cannot be taken into consideration in the course of the procedure.
In the Procurement Procedure, only a bid (in a two-phase procedure, an application to participate) with the content and details corresponding to the Call for Proposals, meet the formal requirements contained therein can only be accepted as valid application to participate or bid.
The Contracting Authority shall set a deadline in the Call for Proposals for submitting applications to participate and/or bids with content corresponding to the content of the Call for Proposals (hereinafter referred to as: „Submission Deadline”), which is a deadline with preclusive effect; if this deadline is missed, justification shall not accepted.
The Procurement Procedure shall be launched and conducted according to the content of the approved Call for Proposals or Procurement Documentation stipulating its conditions. The Contacting Authority shall be required to make available the Procurement Documentation to the economic operators who indicated their interest in participating in the procedure in writing, after a preliminary company data registration, without restriction, fully and free of charge.
Candidates can submit a joint application to participate; in a one-phase procedure Bidders can submit a joint bid. In such a situation, the application to participate or the bid (in a single-phase procedure) shall contain the agreement between the joint Candidates or Bidders, declaring their joint and several liability.
The Requestor of a given Procurement Procedure shall not also be the approver of the decision that closes a given Procurement Procedure.
After the deadline for submitting final bids has passed, the bids become binding, and due to this the Call for Proposals, the documentation and the submitted bids cannot be modified any longer.
Unless provided otherwise in the Procurement Procedure Document, during the Procurement Procedure the languages of the procedure shall be Hungarian and English, with the condition that the English language shall be the governing language in the event of any interpretation dispute.
Unless it is otherwise provided in the Documentation of the Procurement Procedure, all deadlines given in days and hours in the Procurement Documentation shall be construed according to local Hungarian time. Unless it is otherwise provided in the Documentation of the Procurement Procedure, in the course of the bid submission, upon conversion between different foreign currencies, the Bidder shall apply the foreign exchange rates effective on the day of performance as specified by the National Bank of Hungary, while, with regard to balance sheet data, the foreign exchange rates effective on the date of the given balance sheet as specified by the National Bank of Hungary and, with regard to the statement of sales revenues, for the foreign exchange rates on the last banking day of the given year as specified by the National Bank of Hungary.
III.1.1. GENERAL LIABILITY OF THE PERSONS AND ORGANISATIONS PARTICIPATING IN THE PROCUREMENT PROCEDURE
In all phases of the Procurement Procedure, each participating person and organisation shall ensure, in line with their tasks and competence, that the provisions of this Policy will be enforced and the interests of the Contracting Authority will be protected. Employees and management staff participating under any legal title in the Procurement Procedure, in line with their competence and tasks, in the course of implementing the tasks included in their job descriptions shall be liable under the labour law for the preparation and conduction of the Procurement Procedure appropriately and for the professional nature of the decision making-related recommendations and decisions.
If the Contracting Authority involves a Contributor (Procurement Agent, external expert, responsible accredited public procurement expert consultant, etc.) in the procedure then, as regards the liability of the Contributor and the extent of this liability, the liability rules set out in the contract they signed on the participation in the procedure and the liability rules specified in this Policy shall apply.
III.1.2. COMMUNICATION AND PUBLIC DISCLOSURE DURING THE PROCUREMENT PROCEDURE
During the Procurement Procedure, communication with the Bidders/Candidates shall be made exclusively in writing; it shall be forbidden to provide verbal information (e.g. over the telephone) in connection with the Procurement Procedure.
The data and information included in the documents and presentations that serve as the basis of any decision related to the Procurement Procedure in progress and those that are learnt in connection with adoption of the decision - here also including what is said in the discussions (presentation) of the decision - shall be classified as business secrets or confidential information or non-public information, for the safe keeping of which the parties preparing and assessment the documents serving as the basis of the presentation or decision as well as the Decision Makers shall be liable.
All the original documents (without the working copies) and documentation that serve as the basis of all the decisions that are made in connection with the preparation and conduction of the Procurement Procedure and the performance of the contract shall be retained for five years from the closing of the Procurement Procedure or, in the event of conclusion of a contract, from the performance of that contract.
III.1.3. CONFLICT OF INTEREST
The Contracting Authority shall be required to make all necessary measures to prevent any conflict of interest and the development of any situation that would lead to an infringement of fair competition.
Any person or organisation unable to exercise their functions impartially and objectively for a reason, thus especially because of economic or other interests or because of another joint interest existing with an economic operator participating in the Procurement Procedure, is affected by a conflict of interest and shall not participate in the preparation and conduction of the procedure on behalf of the Contracting Authority.
A person or organisation who has been involved in any activity by the Contracting Authority that is connected to the procedure or its preparation has a conflict of interest and may not participate in the procedure as a Bidder, Candidate or subcontractor, or an organisation participating in certifying eligibility, where their participation in the Procurement Procedure may lead to an infringement of fair competition.
The Contracting Authority shall be required to draw the attention of the person or organisation involved into the preparation of the Procurement Procedure in advance, if their participation in the Procurement Procedure could lead to a conflict of interest.
It will not result in the infringement of fair competition and it will not lead to a conflict of interest if a person (organisation) from whom the Contracting Authority requested information, in the interest of clarifying the situation, preliminary market research or the preliminary assessment of the market value, without indicating the date of the commencement of the Procurement Procedure and with whom it communicated only the data that were required for the assessment, participates in the procedure, provided the Contracting Authority did not disclose to it any information that was beyond the scope of the data that had been made available to all the Bidders or Candidates in the course of the Procurement Procedure.
A Bidder or Candidate can only be excluded from the Procurement Procedure on the basis of a conflict of interest, if the equal opportunity for the economic operators participating in the Procurement Procedure cannot be ensured in any other manner. Prior to exclusion, the Contracting Authority shall ensure, through deficiency remediation or requesting information, the possibility for the economic operator involved to prove that its participation in preparing the Procurement Procedure will not infringe equal opportunities and fair competition, or to allow it to remedy a conflict of interest situation in any other manner. The Contracting Authority shall be required to introduce, in the document closing the Procurement Procedure, the measures that had been introduced by the economic operators in the interest of preventing the conflict of interest situation.
A person or organisation that acts on behalf of the Contracting Authority or who is involved by the Contracting Authority in any activity that is connected to the Procurement Procedure or preparation thereof shall be required to make a statement on whether any conflict of interest, as defined in this Policy, exists in respect of it.
All persons or organisations participating in the Procurement Procedure under any legal title shall ensure that the purposes of the project are enforced. To this end, they shall sign, prior to their participation and taking over the Procurement Procedure documents, a conflict of interest and confidentiality statement according to Clause III.1.3 and to hand it over to the Procurement Agent and to act in line therewith during the entire duration of the Procurement Procedure.
Only a person, who has signed the conflict of interest and confidentiality statement in advance, shall participate in a Procurement Procedure under this Policy.
Those acting on behalf of the Contracting Authority in the course of the Procurement Procedure - thus especially in the course of preparing the Procurement Documentation - may not submit a bid and they may not have an employment relationship or any other legal relationship that is directed at the implementation of work with the economic organisation that executes any economic activity connected to the subject of the Procurement Procedure; moreover, they may not be executive officers of it, or persons with ownership participation in them or the relatives of such persons.
If, in the course of any of the phase of the Procurement Procedure, it becomes evident that the observation of the conflict of interest rules cannot be expected from any of the involved parties, the party involved shall be required to indicate this without delay in writing to the Procurement Agent. In the event of non-observance of confidentiality and conflict of interest, the Decision Maker will decide on the follow up steps and sanctions. The Procurement Agent shall be required to take care of obtaining the conflict of interest and confidentiality statements and of retaining them, together with the documents of the Procurement Procedure.
A person indicated as a subcontractor exceeding 25% of the submitted bid in the course of this Procurement Procedure may not submit an independent bid or a consortium bid. A person who participates in the preparation of the terms and conditions of and in the evaluation of the Procurement Procedure may not submit a bid, may not be a subcontractor or any other participant in the given procedure. The designer, the manufacturer and a legal or non-legal person who gave a price quotation providing the basis for establishing the market price shall not be considered a person who developed the conditions of the Procurement Procedure.
IV.1. PREPARING THE PROCUREMENT PROCEDURES
IV.1.1. PREPARING THE PROCUREMENT PROCEDURES - market research
At the time when a new Procurement Need occurs, it shall be necessary to implement market research and/or to carry out a preliminary well-founded price assessment, based on a documentation prepared with expert work in the interest of establishing the estimated value of the procurement.
The market research activity shall be carried out and documented in each case by the Requestor who formulates the Procurement Need.
In the course of designing and preparing the Procurement Needs, efforts shall be made to summarise the procurements that belong together from the perspective of functionality or which are similar, in order to be able to achieve a competitive advantage by introducing competition simultaneously for the aggregated quantity. It is forbidden to break up the specific needs that belong together for the purpose of avoiding the requirements of this Policy.
For procedures under Clauses X.5 and X.6 of this Policy, market research shall include research for market participants able to perform the contract.
A Procurement Procedure in the preparatory phase is already in progress.
IV.1.2. PREPARATION OF THE PROCUREMENT PROCEDURES - Setting up the Evaluation Committee
The Contracting Authority shall establish an Evaluation Committee in line with the content of this Policy with regard to each of its Procurement Procedures - with the exception stipulated in this point - prior to starting it; that Committee will prepare the given Procurement Procedure and, with its expert opinion containing the proposed decision, assist the person(s) or organisation that is entitled to make the decision in the course of the Procurement Procedure, in any of its phases.
In the commencement phase of each Procurement Procedure, an Evaluation Committee shall be established at the request of the Board of Directors of the Contracting Authority and it shall be required to operate until the Procurement Procedure is closed.
All the assigned persons shall be required to meet the assignment by the deadline; they shall be required to participate in the meetings of the Evaluation Committee, shall reply to the email messages of the Procurement Agent by the deadline and shall assist the work of the Evaluation Committee and, in the event of their absence, ensure an appropriate deputy and hand over the information on the Procurement Procedures in progress. The deputy Evaluation Committee member shall be required to complete a statement on conflicts of interest. An Evaluation Committee member, by signing the conflict of interest and confidentiality statement, accepts the assignment.
The Evaluation Committee shall comprise a minimum of 7 members; however, based on the decision by the Board of Directors of the Contracting Authority, it may be freely extended, but in any case it shall consist of an odd number of members. The mandatory delegates of the Evaluation Committee shall be the representatives or delegates of the Hungarian and the Chinese Designated Organisations, respectively, or the persons appointed by them. It shall be mandatory for there to be persons in the Evaluation Committee with the following special expertise areas: expertise according to the Procurement Subject, legal expertise, financial expertise, procurement expertise.
TASK OF THE MEMBER WITH EXPERTISE CORRESPONDING TO THE SUBJECT OF THE PROCUREMENT:
At least two persons shall act in the course of the Procurement Procedure in respect of the expertise corresponding to the subject of the procurement.
It shall be the task of the persons with expertise corresponding to the subject of the procurement to compile the technical specification of the procurement.
The person with expertise corresponding to the subject of the procurement shall be required to prepare the technical specification fully corresponding to the requirements of the profession; moreover, with regard to a works contract, to prepare the itemised budget contract notice in line with the facts.
The person with expertise corresponding to the subject of the procurement shall be responsible for the comprehensiveness and professional suitability of the information and data provided.
The person providing the expertise corresponding to the subject of the procurement shall be required to make a proposal during the preparation of the Procurement Procedure as regards the minimum requirements of technical professional eligibility; he shall be required to issue an opinion from a technical point of view on the draft contract that is included in the Procurement Documentation.
Moreover, he shall be required to review the estimated value and advise on the net coverage of the given Procurement Procedure.
The person providing the expertise corresponding to the subject of the procurement shall be required to examine the received applications to participate or bid from the aspect of technical eligibility in the judgement and evaluation phase of the Procurement Procedure and to issue a statement on its appropriateness or to indicate the deficiencies.
Moreover, they shall be required to fully review the priced budgets and cost calculations that are submitted in the course of the Procurement Procedure and to flag possible calculation errors, typing mistakes and modifications. If it is a part of the given Procurement Procedure, they shall be required to implement the professional test and to document it. Moreover, they shall be required to issue a statement in respect of the equivalence of the product offered, if it is relevant in the given Procurement Procedure.
TASK OF THE MEMBER WITH LEGAL EXPERTISE:
It shall be the task of the person with legal expertise to check, in the preparatory phase of the Procurement Procedure, whether the Procurement Documentation prepared by the Procurement Agent is compliant with this Policy. If they detect any deficiencies, they shall be required to correct them.
The person with legal expertise shall be required to draft the draft contract that is a part of the Procurement Documentation.
The person with legal expertise, in the judgement and evaluation phase of the Procurement Procedure, shall be required to review the received applications to participate and bids from a legal aspect, and in the context of this they shall check the applications to participate and the bids, from all aspects, with the exception of the content that had been described under the expertise corresponding to the subject of the procurement.
The person with legal expertise shall participate in the settlement of any issues of dispute involving the Procurement Procedure.
TASK OF THE MEMBER WITH PROCUREMENT EXPERTISE:
Providing the Procurement expertise in the course of the Procurement Procedure: Procurement expertise in the course of the Procurement Procedure shall be provided by the Procurement Agent.
The Procurement Agent, through their Procurement expertise, shall be responsible for compiling the comprehensive Procurement Documentation, the statements, minutes, expert opinions, deficiency remediation and price rationale required for commencement and implementing the Procurement Procedure, for documenting all the procedural events of the Procurement Procedure, for carrying out the information providing tasks and for fully coordinating the Procurement Procedure and for the technical management of signing the Procurement Contract. Moreover, they shall be responsible for the publication of the fact of closing the Procurement Procedure.
TASK OF THE MEMBER WITH FINANCIAL EXPERTISE:
The member with financial expertise shall be required to examine the received applications to participate or bids from the aspect of financial eligibility and to issue a statement on their eligibility or to indicate the deficiencies.
The member with financial expertise shall monitor, in the course of the procedure, compliance with the coverage of the procurement. If it is necessary to increase the coverage, they shall be required to check the basis of the coverage increasing request from the aspect of the arithmetical calculations.
IV.1.3. PREPARING THE PROCUREMENT PROCEDURES - Work of the Evaluation Committee
The Evaluation Committee, in the phase of preparing the Procurement Procedure, shall participate under the direction of the Procurement Agent in line with the deadlines specified by them in preparing the Procurement Procedure, in compiling the Procurement Documentation and in conducting the Procurement Procedure, and in assessment and evaluation of the received applications to participate and bids.
The Evaluation Committee shall be required to elect a Chairperson, who shall be responsible for the success of the work of the Evaluation Committee, from among its members by a simple majority of votes. Each proposal presenting member of the Evaluation Committee shall be required to make a decision on each issue according to their expertise; they cannot abstain from voting with regard to any of the issues. Each member of the Evaluation Committee shall have one vote. The Evaluation Committee makes its decision by a simple majority of its members, if it has a quorum. The Evaluation Committee may carry out its work in the form of personal consultation with simultaneously having an evaluation committee meeting or through other written communication as well. The evaluation and the work of the Evaluation Committee shall not be public.
The Evaluation Committee, in the phase of assessment and evaluating the applications to participate and the bids, shall prepare a written expert opinion and a decision proposal for the person(s) or body who will issue the decision closing the Procurement Procedure and the interim decision on behalf of the Contracting Authority.
The work of the Evaluation Committee is organised by the Procurement Agent, at its discretion either through personal discussions (Evaluation Committee meetings) or through email correspondence implemented with the aid of the internal mailing system of the Contracting Authority. Each member of the Evaluation Committee shall be required to observe the deadlines that are set by the Procurement Agent. Within one procedure, the contact keeping forms described above may alternatively be freely used. The work of the Evaluation Committee shall be harmonised and administered by the Procurement Agent. Each member shall participate in the work of the Evaluation Committee in line with the competence corresponding to their special expertise and they shall be responsible, in the course of implementing the Procurement Procedure other than procurement needs of extremely low economic significance, for examining the aspects that correspond to their expertise.
The Evaluation Committee, if the permanent members and the Procurement Agent are present or based on their email answer, shall be entitled to present a proposal for the Decision maker, provided that the position and opinion of the members of the Evaluation Committee are incorporated in the work materials of the Evaluation Committee by the Procurement Agent.
The Evaluation Committee shall be required to support the decision proposal with a statement of reasons. Each member of the Evaluation Committee is entitled to attach their evaluation sheet as a minority opinion to the minutes, which contains the joint opinion of the Evaluation Committee.
The Procurement Agent shall be required to prepare Minutes on the work of the Evaluation Committee, which shall be required to include the written expert opinion of the Evaluation Committee and its (interim) decision proposal and the evaluation sheets of the members of the Evaluation Committee shall be attached to it.
In order to support the work of the Evaluation Committee, those inviting the Committee members may invite additional persons, either as external observers as experts, or even as members of the Evaluation Committee, who have a voting right, as required, in the procedure.
It is necessary to record the status of the members in the course of invitation to the Evaluation Committee, which can be either a proposal presenting status with a voting right, or an observer status without a voting right or an expert status, which does not have a voting right but a proposal submission right.
The Procurement Agent shall be responsible that the decision making person or body receives the written expert opinion of the Evaluation Committee in a documented manner, at a point in time that provides sufficient time for making the decision.
It shall be the task of the Evaluation Committee to perform, in the scope of full preparation of the given Procurement Procedure, in particular the following:
1. to review the estimated value specified by the Evaluation Committee member who has expertise as regards the subject of the procurement, to determine the necessary financial coverage, to obtain the coverage certificate and, where necessary, make a proposal to the Decision Maker on the extension of the coverage,
2. to check the fulfilment of the prohibition to divide into parts (aggregation obligation),
3. to present a proposal as regards the procedural order and the type of the procedure,
4. to specify the type of contract and its strategic elements,
5. to finalise and approve the Call for Proposals initiating the Procurement Procedure and the related documentation and, within this, primarily to define the eligibility aspects, to establish the method of certifying these, to set out the conditions of alternative offers, to define the conditions of submitting partial bids (provided its prerequisites are fulfilled), to provide the exclusion reasons, to define the evaluation aspects, weighting factors and scores, setting eligibility criteria and their certification method, and, if applicable, to set the terms and conditions for an alternative proposal or to make a proposal for a part, furthermore to specify the scope of documents to be attached (by the Bidders and Candidates),
6. to approve the draft contract,
7. to determine the bidding collateral, to decide on the application of an electronic Dutch type of auction,
8. to set out the schedule of the procedure,
9. to present a proposal for the possible modification of the already approved Call for Proposals or of the documentation for the Decision Maker,
10. as required in the given case, to approve the list of the companies intended to be invited to submit bids, in respect of which the approval of the Decision Maker must also be obtained prior to the commencement of the Procurement Procedure,
11. to present a decision proposal in the event of an unsuccessful Procurement Proposal on the repetition of the procedure (an unanimous decision shall be required),
12. to make a decision with an appropriate statement of reasons on whether the Procurement Need is of Extremely Low Economic Significance.
Prior to the commencement of the Procurement Procedure, the Decision Maker or the person appointed by them shall be required to approve (by signing or through email) the minimum eligibility requirements and the evaluation partial aspects, together with their weighting factors included in the Call for Proposals to initiate a procedure.
The Evaluation Committee shall decide on the approval of the Procurement Documentation after the above consent to it by the Decision maker.
If setting up an Evaluation Committee is not justified on a rational basis to prepare the procedure in a professional manner, thus especially with regard to procurement needs of Extremely Low Economic Significance, the tasks that are set out in this Policy for the Evaluation Committee shall be implemented by the Requester who has the expertise corresponding to the subject of the procurement, with the participation of the Procurement Agent by using a contract template drafted by a lawyer, with the condition that the Procurement Agent shall be required to also carry out their tasks as described in this Policy in this case, as well.
IV.2. COMMENCEMENT THE PROCUREMENT PROCEDURE
The Procurement Procedure may be conducted in line with the contents of the approved Call for Proposals that stipulates its conditions.
IV.2.1. The Contracting Authority may freely decide on the selection from the procedural types specified below:
- a one-phase Procurement Procedure initiated with the publication of a Contract Notice,
- a two-phase Procurement Procedure initiated with the publication of a Contract Notice without negotiations
IV.2.2. The Contracting Authority may decide on conducting the type of procedure indicated below in the presence of the following preconditions:
- a two-phase Procurement Procedure initiated with the publication of a Contract Notice with negotiations (X.3)
- a two-phase Procurement Procedure starting with pre-qualification ending with negotiations in several rounds (X.4)
- the one-phase Procurement Procedure initiated with the publication of a Contract Notice or the two-phase Procurement Procedure initiated with the publication of a Contract Notice without negotiations was not successful because there were no applications to participate or bids filed, or only bids exceeding the financial coverage were filed; or
- the needs of the Contracting Authority cannot be met without adaptation of readily available solutions; or
- the procurement relates to design or innovative solutions; or
- due to the particular conditions or the relevant risks deriving from the nature, complexity or legal and financial structure of the contract, the most favourable bid cannot be determined without preliminary negotiations.
The Contracting Authority shall be required to indicate in the Call for Proposals, according to its decision, as evaluation criterion, either the bid of the lowest amount or the bid that is altogether the most favourable (listing and weighting in addition to the bidding price other aspects as well).
It shall be mandatory for the Call for Proposals of the Procurement Procedure to include the following as a minimum:
- the name, address and contact data of the Contracting Authority
- the type of the selected procedure (indicating separately whether in the given phase it shall be possible to submit a bid or not)
- the subject and quantity of the Procurement Procedure
- the definition of the contract to be signed, the duration of the contract or its performance deadline
- the place of performance
- the conditions of performing the consideration or the reference to the relevant legal provisions
- whether the Bidder may submit a partial bid or whether it may submit an alternative bid
- the exclusion reasons and eligibility conditions provided by the Contracting Authority, with the methods of certification
- the way and the deadline when the Procurement Documentation is made available, the place and financial conditions of its procurement
- evaluation aspect, aspects with weighting factors and the evaluation method
- the Submission Deadline
- the address of submission
- the language of the Procurement Procedure
- the place and time of opening the bids
- the period for which the bid shall be required to be binding
- the way business secrets need to be attached
- the day when the Call for Proposals was sent
- in the event of a negotiation-based procedure, the method and the rules of conducting the negotiations
- if the Contracting Authority specified a quota, the quota and the method of the related ranking
In the Call for Proposals, the Contracting Authority shall specify so-called exclusion reason(s), which will mean the automatic invalidity of the Bidder’s bid in respect of the given procedure. It shall be mandatory for the Contracting Authority to examine, as an exclusion reason, the absence of public debt as regards the domicile of the Bidder and as regards Hungary, as well as its legal status and legal capacity.
In the Procurement Procedure, at least one financial eligibility condition and at least one technical professional eligibility condition shall be stipulated. The extent of the eligibility condition cannot exceed 100% of the estimated value of the relevant Procurement procedure.
The Procurement Procedure shall be considered as started if the Call for Proposals to it has been compiled and announced.
IV.3. CONDUCTING THE PROCUREMENT PROCEDURE
The Contracting Authority shall prepare, in addition to the Call for Proposals, the Procurement Documentation, which will contain the contractual terms and conditions, technical specifications and the other conditions that had been prepared for the given Procurement Procedure.
In the event it finds forbidden practices, the Contracting Authority shall exclude the Bidder(s) involved therein from the Procedure with an Interim Decision.
In procedures under Clauses X.5. and X.6 the Bidders invited to submit bids may not make joint bids. However, invited Bidders are not prevented from submitting a joint bid with an economic operator to whom the Contracting Authority did not send a Call for Proposals.
The Contracting Authority shall be required to conduct the Procurement Procedure with the following expected lead times:
For procedures that are initiated with the publication of a Contract Notice, the minimum bidding or application deadline that may be stipulated in the Call for Proposals is 30 calendar days, with the condition that in the case of a two-phase procedure, in the negotiation phase, the 30 calendar day deadline may be shortened to 15 calendar days.
The Contracting Authority shall provide the appropriate time needed to prepare the professional content and the application to participate. If a Bidder requests it in writing, the Contracting Authority may decide to extend the deadline stipulated in the Call for Proposals.
If the deadline stipulated in the Call for Proposals is missed, an application for excuse shall not be entertained; the bid or the participation application is late and invalid.
The Bidder shall be required to assess the applications to participate or bids received by the deadline specified in the Call for Proposals against the exclusion criteria specified in the Call for Proposals without delay, and then according to the evaluation criteria. Bids or applications to participate received after the submission deadline will not be evaluated by the Contracting Authority; it will attach them to the documents of the procedure as late bids or applications to participate.
In the course of evaluating the bids and applications to participate, the Contracting Authority shall examine whether the bids or applications to participate meet the conditions that are specified in the Procurement Documentation and in the legal provisions that are given in the documentation.
The Contracting Authority shall be required to establish which bids or applications to participate are invalid, and whether there is any Bidder that shall be excluded from the procedure. The Contracting Authority, in the course of evaluation, shall be required to make a preliminary check on the eligibility requirements, the exclusion reasons and the other objective aspects that are specified in the Procurement documentation. The Contracting Authority evaluates only those valid bids as set out in the Call for Proposals.
The Evaluation Committee, convened for judgement and evaluation on behalf of the Contracting Authority, is entitled to the assesment and evaluation.
In the interest of ensuring that bids that are deficient or not unambiguous can stay in the competition, it shall be possible to request deficiency remediation or information in line with the content of the Call for Proposals.
Unambiguous calculation errors will be corrected by the Contracting Authority within its own competence, about which it will simultaneously inform all the Bidders who submitted a bid in the course of the Procurement Procedure. The Contracting Authority shall be required to ask for an explanation from any Bidder who submitted a bid containing an unrealistic undertaking or a strikingly low bidding price, at least on one occasion. If the Contracting Authority is unable to carry out an evaluation, even on the basis of the submitted reasoning, it shall ask Bidder on an additional one occasion to submit a statement of reasons. The Contracting Authority may only accept reasoned statements that are based on objective, well-founded reasons.
The winner of the Procurement Procedure is the Bidder who submits, in the course of a successful procedure, a valid bid that is the most favourable according to the evaluation criteria.
Before the Submission Deadline, the Contracting Authority is entitled to withdraw the Procurement Procedure, without any reasoning. After the passing of the Submission Deadline, if no application to participate or bid has arrived, the Contracting Authority shall invalidate the given Procurement Procedure with reference to this fact.
Any Candidate or Bidder who submitted an application to participate or a bid, respectively, the representative of the Contracting Authority and persons invited by the Contracting Authority may participate in the opening of the bids. Minutes shall be prepared on the opening of the bids, which will be sent to all the Bidders and Candidates simultaneously. The following details of each application to participate and bid submitted in the procedure shall be communicated by the Contracting Authority during the opening procedure as regulated in the Call for Proposals: the name and registered address of the Candidate or the name and registered address of the Bidder and their bid relating to the evaluations aspects at the time of opening the bids.
The opening minutes should also contain the financial coverage communicated by the Contracting Authority before the opening of the final bids.
IV.4. CLOSING THE PROCUREMENT PROCEDURE, SIGNING THE CONTRACT
In the Procurement Procedure, based on the proposal presented by the Evaluation Committee, the Decision Maker shall make their decision, and subsequently the result of the decisions that had been made in the course of the Procurement Procedure may be communicated to the Candidates or Bidders in the relevant procedure, simultaneously, in writing, in documented manner.
In the particular Procurement Procedure, unless otherwise provided in the Call for Proposals, the decision closing the procedure shall be passed within thirty days after the bids are opened; this deadline may be extended if necessary once, by a further fifteen days. In a two-phase procedure, the participation phase must be closed, unless it is otherwise provided in the Contract Notice, within thirty days following the opening of the applications to participate, by sending out the Call for Proposals.
After sending the decision, the addressee Bidder has five calendar days for submitting well-founded comments in writing. If a reasonable comment is received, the Contracting Authority will answer the content of the comment within three working days after receiving it and, provided it is necessary to implement a modification that involves the document for closing the procedure, it will then implement it.
It is possible to sign a contract in the course of the given Procurement Procedure at the earliest on the fifteenth calendar day after the document closing the procedure is sent to the Bidders. The contract shall be concluded by the thirtieth day calculated from the date of delivery of the document closing the Procurement Procedure to the Bidders.
In the Procurement Procedure, the contract issued in the Procurement Documentation can be concluded, in accordance with the final bid.
The conclusion of the contract shall take place pursuant to the Contracting Authority’s currently valid regulations on contracting.
An application to participate or bid, which is received by the Contracting Authority by the deadline that is stipulated in the Call for Proposals in line with the formal requirements included in the Call for Proposals that started the procedure, and which fulfils the eligibility conditions and the conditions concerning the exclusion reasons stipulated in the Call for Proposals that started the procedure, and the Bidder had not been excluded, shall classify as valid. An application to participate or a bid shall be always valid, if there is no reason of invalidity under this Policy.
A bid or application to participate shall be invalid if
1. it had been submitted after the expiry of the Submission Deadline;
2. the Bidder or Candidate had been excluded from the procedure;
3. the Bidder’s or Candidate’s subcontractor or the organisation participating in certifying their eligibility has been excluded due to forbidden conduct;
4. the Bidder or Candidate does not fulfil the eligibility requirements that shall be required for performing the contract, or if it did not certify the fulfilment of the conditions required for performing the contract appropriately;
5. it does not meet in any other manner the legislation-related conditions that had been given in the Call for Proposals and the Procurement Documentation, not including here the formal requirements that had been stipulated by the Contracting Authority in the Call for Proposals;
6. The reasoning of the Bidder submitted in respect of its unrealistic commitments is not appropriate, even after deficiency remediation;
7. The bid is invalid if, even on the basis of the answer that is provided in the framework of deficiency remediation following the requesting of a statement of reasons, it still includes a disproportionally low consideration or other conditions relating to a deficiency remediation, the fulfilment of which is impossible, or it includes an unrealistic commitment;
8. Beyond Points 1 to 7 above, the application to participate shall be invalid if the Candidate submits a bid;
9. A bid shall be invalid if, in spite of the binding nature of the bid, the Bidder has withdrawn it;
10. A bid shall be invalid if the Bidder does not make available the bidding collateral by the deadline or it makes it available for an amount that is less than the stipulated one;
11. A bid shall be invalid if the Contracting Authority, in the Call for Proposals initiating the Procedure specified such an amount in advance, in connection with which the Contracting Authority will declare a bid that contains a price or cost that exceeds it invalid in the course of evaluation and the bid exceeds this amount.
The Contracting Authority shall exclude from the procedure any Bidder or Candidate who
1. falls under the scope of the exclusion reasons,
2. is affected by an exclusion reason which occurred in the course of the procedure,
3. showed any forbidden conduct.
The Candidate or the Bidder shall qualify as ineligible, if it does not comply with the eligibility requirements required for the performance of the contract as stipulated in the Call for Proposals of the given Procurement Procedure.
VI. FORBIDDEN CONDUCT
Showing any conduct corresponding to the practices described below will lead to exclusion from the Procedure.
Showing any conduct corresponding to the following prevents contracting:
- „practice based on collusion” agreement between two or more parties in the interest of achieving an improper aim, including improperly influencing the acts of the other party;
- „practice of corruption” offering any valuable thing, accepting it or asking for it directly or indirectly in the interest of improperly influencing the act of the other party;
- „practice of deception” any such act or ommission, including the issue of improper legal statements, which either knowingly or negligently misleads or tries to mislead a party with the aim of acquiring financial or other advantage or avoiding one of its obligations.
VII. SUCCESS OF THE PROCUREMENT PROCEDURE
If reasons of unsuccessfulness described below fail to exist, the given Procurement Procedure shall be successful.
The Procurement Procedure shall be unsuccessful if:
- no bid or no application to participate had been submitted,
- exclusively invalid bids or applications had been submitted,
- none of the Bidders submitted a bid that is appropriate in view of the financial coverage that is available to the Contracting Authority,
- the Contracting Authority, due to forbidden conduct, decided to declare the procedure to be invalid,
- the binding period of the bids stipulated in the Call for Proposals expired in respect of all the bids.
VIII. DOCUMENTATION OF PROCUREMENT PROCEDURES, KEEPING THE DOCUMENTS OF PROCUREMENT PROCEDURES The Contracting Authority shall be required to document in writing any and all Procurement Procedures, from their preparation until the performance of the contract. All documents made and related to preparation, carrying out the procedures and until the performance and completion of the contract related to the Procurement Procedures from the closing of the Procedures and all documents related to the performance of the contract shall be kept for five years, calculated from the date of performance. The Procurement Agent shall be responsible for the delivery of the files to be kept and guarded.
The documents of the Procurement Procedures shall be kept by the Employer defined in the Treaty.
IX. MONITORING OF THE PROCUREMENT PROCEDURES, RIGHT TO ACCESS THE DOCUMENTS
Any interested economic operator shall have the right to access the documents of the Procurement Procedures after the closure of the given Procurement Procedure and the conclusion of the contract (agreement), provided that the Contracting Authority shall proceed in compliance with the rules relating to the protection of business secrets.
If such a request is received, the Procurement Agent of the given Procurement Procedure shall be notified; they shall be at the disposal of the interested economic operator at a jointly agreed time in consideration of the request.
Minutes shall be taken of the access the documents, in the framework of what it is necessary to state that the procedural documents were presented during the access to documents. The Petitioner shall not ask for and cannot receive copies of any of the presented documents; he can only make notes.
X. SPECIAL POLICY FOR ELIGIBLE TYPES OF PROCEDURE
In addition to Chapter X. of this Procurement Regulation, the following will govern the given types of procedure.
X.1. OPEN PROCEDURE WITH ONE-PHASE INITIATED WITH THE PUBLICATION OF A CONTRACT NOTICE
Open is the Procurement Procedure, which consists of a single phase and starts by a publication of a Contract Notice. In an open procedure all interested economic operators may submit bids.
In an open procedure it is obligatory to prepare the Procurement Documentation and the Call for Proposals to initiate a procedure.
In an open procedure, requests for clarification may arrive regarding the documentation issued by the Contracting Authority and, in the context of the answers given to such questions, the Contracting Authority cannot modify the conditions of the Procurement Procedures subject to keeping unchanged the Submission Deadline specified in the Call for Proposals to initiate a procedure to an extent that would significantly modify the procurement needs existing at the initiation of the Procurement Procedure.
In the event where the Procurement Documentation shall be substantially modified due to the clarification questions, the Contracting Authority shall extend the deadline available for the presentation of bids in such a way that at least half of the period provided originally for the submission of the bid should be open.
The bids made pursuant to the Contract Notice should be sent in a sealed envelope to the place stated in the Contract Notice, until that time, in the number of copies and form stipulated therein. The Bidder shall be responsible for annexing business secrets separately to its bid; the relevant instruction shall be included in the Contract Notice.
In a one-phase open procedure the bid presented by the deadline for presentation fixed in the Contract Notice shall be the final bid.
The opening of the bids shall at all cases be a publicly announced procedural event, between the Contracting Authority and the Bidders, and those invited by the former.
The Evaluation Committee shall make the evaluation of the bids, exclusively pursuant to the assessment criteria set forth in the Contract Notice.
Should there be only one valid bid, the Procurement Procedure is not unsuccessful; however, a price expert shall be introduced to the assessment, and it is obligatory for the Decision Maker to give a statement of reasons on the advantages of accepting the only valid bid, instead of repeating the Procurement Procedure. The time required for the Procurement Procedure shall not in itself be a reason for not pursuing a repeated Procurement Procedure.
X.2. TWO PHASE PROCUREMENT PROCEDURE STARTING WITH THE CONTRACT NOTICE OF A CALL FOR PROPOSALS, WITHOUT NEGOTIATIONS
The rules of this kind of procedure are identical with the rules of the open procedures, with the differences set forth in this Clause, that no bid shall be made, neither partly nor in full in the first phase of the procedure. The applications to participate made pursuant to the Contract Notice should be sent in a sealed envelope to the place stated in the Contract Notice, until that time, in the number of copies and form stipulated therein. The Call for Proposals shall contain the applicable evaluation aspects.
Bids may be presented exclusively by those Candidates directly invited to bid by the Contracting Authority after closing the first successful participation phase, by indication in this call the deadline for and way of the submission of the final proposal. In the first phase, the Contracting Authority decides on the eligibility or ineligibility of the Candidate, on the validity or invalidity of the application to participate in accordance with the terms set out in the Call for Proposals (prequalification). The conditions and criteria of the pre-qualification shall be objective, such as financial condition, experience, etc., and shall be specified in the Call for Proposals that commences the pre-qualification by the Contracting Authority.
In the second bidding phase, the composition of the entities submitting application to participate shall not change. The bidding shall take place in the second phase of the Procurement Procedure.
Under this procedure the Contracting Authority can specify a quota in the Call for Proposals, and it invites the ranked Bidders up to this quota to make a bid. The ranking shall take place according to the objective criteria published in the Contract Notice triggering the procedure. The minimum quota shall be at least five. If the Contracting Authority has not set a quota in the Contract Notice triggering the procedure, it shall invite all Candidates who had presented a valid application to bid.
X.3. TWO-PHASE PROCUREMENT PROCEDURE STARTING WITH A CONTRACT NOTICE, WITH NEGOTIATIONS
The rules of this kind of procedure are identical with the rules of open procedures under Clause X.2, with the difference that the Contracting Authority holds a negotiation in this procedure and the minimum quota shall be at least three.
The negotiating rules set out below shall be stipulated in the Call for Proposals, and shall be respected.
The Contracting Authority shall carry out the negotiation in a closed circle (only the Contracting Authority and the Bidder, as well as their representatives, may be present). The information disclosed by the Bidder during the negotiations may be qualified as business secrets, however, this may not prejudice the transparency of the Procurement Procedure.
The Contracting Authority, unless otherwise provided in the Call for Proposals, shall negotiate with each Bidder jointly at the negotiation(s). The Bidder may only be represented in the negotiations by a person empowered to represent them, pursuant to the valid extract from the company register or by a person given power of attorney to represent them. The Contracting Authority shall hold a second or a further negotiation meeting only if needed. The Contracting Authority shall fix the time of the third or subsequent negotiation meetings at the end of the second or further negotiations.
The Contracting Authority shall take minutes of each negotiation meeting. Verbatim minutes shall only be drawn up if any of the participants insists.
In the event that the Contracting Authority delivers the minutes to the Bidders at the end of the negotiations, the representative of the Bidder shall be responsible for signing the minutes. The Contracting Authority shall give a counterpart of the signed minutes to each Bidder participating in the negotiations.
If the Contracting Authority does not deliver the minutes taken of the given round of negotiations at the end of the meeting then it will send them within five working days to all participants therein.
The Parties shall negotiate on the contractual terms and conditions and the technical, professional and content elements. The subject of the procurement, and the contractual terms and conditions and the conditions to be contracted on the basis of the procedure cannot change in such a way that the subject or conditions of the contract made on the basis of the procedure and/or in the conditions would be changed in such a manner that it would be different to the subject intended to be procured, or to the contractual terms and conditions upon issuing the Contract Notice.
The Contracting Authority shall invite the Bidders to present a final bid after having clarified the technical, professional and content elements and the contractual terms and conditions, and shall close the negotiations with this. An unequivocal call for the presentation of final bids shall be sent to all Bidders simultaneously. The formal and content prescriptions set forth in the first presentation shall apply as compulsory to the presentation of the final bid. A binding offer is construed by closing the negotiations, both for the Contracting Authority and Bidders. The minimum period of the binding offer is thirty days. The expected duration of the binding offer shall be stated in the Contract Notice triggering the procedure.
If the Contracting Authority finds that the changes included in the minutes are so significant, that in the judgement of the Contracting Authority the extent of such changes justifies providing new documentation, the Contracting Authority shall call the Bidders to make a final bid after sending them the final documentation included in a unified structure.
X.4. TWO-PHASE PROCUREMENT PROCEDURE STARTING WITH PRE-QUALIFICATION ENDING WITH NEGOTIATIONS IN SEVERAL ROUNDS
The rules of this kind of procedure are identical with those under Clause X.3 with the following differences.
The negotiations may be held in separate, subsequent rounds, if the Contracting Authority did not determine a quota or determined a quota exceeding three, to allow the Contracting Authority to reduce the number of the bids to be discussed in accordance with the objective and quantitative aspects defined in the Call for Proposals.
At the closing of each negotiation round the Bidders allowed to enter the subsequent negotiation round should be listed in the minutes of the negotiation with a reasoning. The last negotiation round should be the one where there are at least three Bidders. The Contracting Authority shall indicate in the Call for Proposals that it wishes to apply this opportunity. The date and time of the second and every subsequent negotiation rounds should be defined by the Contracting Authority at the closing of the first or subsequent negotiation rounds. The final bid may be presented in the closing negotiation round.
X.5. PROCUREMENT NEEDS BELOW THE VALUE SET OUT IN CLAUSE III.A.)
The rules of this kind of procedure are identical with the rules of open procedures with the difference that this procedure starts instead of the publication of a Contract Notice as written below. The Contracting Authority shall be required to send the Contract Notice simultaneously and in the same manner in writing at least to three economic operators capable of performing the contract, and it has to post it on the website of the Contracting Authority at least five (5) working days before the commencement of the procedure and it must be available for at least five working days. Where, on the basis of the published Contract Notice, the economic operator expresses its interest in writing to the Contracting Authority, the Contracting Authority shall be required to send them the Procurement Documentation, simultaneously with those bidders it intends to invite to make a bid.
X.6. PROCUREMENT NEEDS OF EXTREMELY LOW ECONOMIC SIGNIFICANCE
Unless otherwise provided in the Procurement Documentation, for procurement needs of Extremely Low Economic Significance, bids can be submitted via an electronic Dutch type auctioning tool, in accordance with the rules specified in the Call for Proposals that initiate the procedure.
The Contracting Authority shall send simultaneously at least to four Bidds capable to perform the contract, in identical manner, in writing, a Call for Proposals, with the mandatory elements set out in Clause IV.2, by indication in the Call that the bids can be submitted via an electronic Dutch type auctioning tools and the Contracting Authority receives the bids via this electronic Dutch type auctioning tool. The Dutch type auctioning call shall contain detailed information on the Dutch type auction, which has to be sent at least five working days prior to the starting date of the Dutch type auction.
XI. POLICY REVIEW
The Contracting Authority shall have the right to initiate through the Project Establishment Working Group defined by the Treaty the amendment or the supplementation of this Policy according to Article 9, paragraph 6 of the Treaty as the Contracting Authority considers it necessary for the purpose of the effective realization of the Project.
The Procurement Procedures are not needed in the following cases:
1. procurements not for consideration,
2. the call drawdown from valid and effective framework contracts up to the frame amount during the duration of the framework contracts,
3. Announcement of procurement procedures, communications,
4. the services offered by the employees of the Contracting Authority within the framework of an employment relationship,
5. services and activities ordered and used for damage prevention or treating emergency conditions, up to the size and force of the damage prevention.
Done in Beijing, 5th February 2016, in duplicate in the Hungarian, Chinese and English languages, either texts being equally authentic. In case of disputes the English text shall prevail.
| for the Government of Hungary|| for the Government of the People’s Republic of China”|
Magyarország Kormánya és a Kínai Népköztársaság Kormánya, alábbiakban együttes nevükön a Felek, illetve külön-külön a Magyar Fél és a Kínai Fél, vagy a Fél,
tekintettel Magyarország Külgazdasági és Külügyminisztériuma valamint a Kínai Népköztársaság Nemzeti Fejlesztési és Reform Bizottsága és Szerbia Köztársaság Építésügyi, Közlekedési és Infrastrukturális Minisztériuma által 2014. december 17. napján aláírt szándéknyilatkozatra (Memorandum of Understanding; alábbiakban: MoU), valamint a 2015. január 14. napján, 2015. július 16. napján illetve a 2015. november 19. napján aláírt együttműködési jegyzőkönyvekre;
figyelembe véve, hogy Magyarország az Európai Unió tagállama;
számításba véve a Felek jogszabályait és nemzetközi kötelezettségeit, ideértve Magyarországnak az Európai Unió jogából fakadó kötelezettségeit;
tekintettel a Felek azon szándékára, hogy tovább fejlesszék, elősegítsék a Felek közti, kölcsönös előnyökön alapuló gazdasági együttműködést;
tekintettel arra, hogy az összes technikai, pénzügyi és más szempontok és körülmények alapján Magyarország és a Kínai Népköztársaság közösen szándékozik végrehajtani a Projektet;
a kölcsönös gazdasági előnyök elvére alapozva;
figyelembe véve a Felek részvételét a Projekt megvalósításában, valamint a finanszírozási feltételek meghatározásában a Magyar és a Kínai Fél nemzetgazdasági érdekeire való átfogó tekintettel;
az alábbiakban állapodott meg:
1. A Felek alapvető célkitűzésének, a Budapest-Belgrád vasútvonal újjáépítési beruházásnak a keretében a Felek együttműködnek a Budapest-Ferencváros-Kelebia (országhatár) határátkelő közti 150. számú vasútvonalon új kétvágányú, 225 kN tengelyterhelésű, ETCS2-vel ellátott villamosított, 200 km/h sebességre alkalmas geometriával 159,4 km hosszú vasúti pálya fejlesztésében, amely legfeljebb 740 m hosszú vonatok közlekedtetésére alkalmas az európai uniós műszaki előírásokkal kompatibilisen, 160 km/h működési sebességgel (alábbiakban Projekt).
2. Jelen Egyezmény keretében folyó együttműködés során megvalósuló vasúti pálya és kapcsolódó létesítményei, valamint a vasúti pályahálózat működéséhez szükséges eszközök a Magyar Fél hatályos jogszabályainak megfelelően az országos törzshálózati vasúti pálya részeként a Magyar Állam kizárólagos tulajdonába és a MÁV Magyar Államvasutak Zártkörűen Működő Részvénytársaság (alábbiakban: MÁV Zrt.) vagyonkezelésébe kerülnek.
1. Jelen Egyezmény teljesítése érdekében mindkét fél kijelöli saját illetékes szerveit (alábbiakban: Illetékes Szerv), valamint a jelen Egyezmény keretében folyó együttműködés előkészítésében, megvalósításában és a Kínai Fél esetében finanszírozásban közreműködő szervezeteket (alábbiakban: Kijelölt Szervezetek)
(1) A Magyar Fél részéről a jelen Egyezmény szerinti Projekt megvalósításával kapcsolatos stratégiai kérdésekben illetékes szervezet a Nemzeti Fejlesztési Minisztérium, mint közlekedésért felelős minisztérium (alábbiakban: Magyar Illetékes Szerv).
(2) A Magyar Fél részéről a kijelölt szervezetek (alábbiakban: Magyar Kijelölt Szervezetek)
1. Nemzetgazdasági Minisztérium, mint az államháztartásért felelős minisztérium, a hitelfelvevő Magyar Állam nevében és képviseletében eljáró állami szerv;
2. MÁV Zrt., mint Megrendelő, amely a jelen Egyezmény szerinti Projektet megrendelő Magyarország nevében és képviseletében eljáró szervezet, amely teljesíti a vállalt kötelezettségeket és viseli a vállalt felelősséget.
(3) A Kínai Fél részéről a Projekt megvalósításával kapcsolatos stratégiai kérdésekben illetékes szervezet a Kínai Népköztársaság Nemzeti Fejlesztési és Reform Bizottsága (alábbiakban: Kínai Illetékes Szerv).
(4) A Kínai Fél részéről a Projekt megvalósítására és finanszírozására kijelölt szervek (alábbiakban: Kínai Kijelölt Szervezetek) vesznek részt:
1. CHINA RAILWAY International Corporation Ltd. (alábbiakban: CRIC) mint a Projekt 6. cikk szerinti kijelölt Fővállalkozójának (alábbiakban: Fővállalkozó) kínai részvényese;
2. Kínai Exim Bank (The Export Import Bank of China) (alábbiakban: CEB), mint a Projekt megvalósításának forrását biztosító hitelt nyújtó szervezet.
2. A Felek Projekt Létesítő Munkacsoportot állítanak fel a Projekt megvalósítása stratégiai kérdéseinek teljes körű kitárgyalására.
3. A Projekt Létesítő Munkacsoportnak két társelnöke a Magyar és Kínai Illetékes Szervek egy-egy kijelölt képviselője, tagjai pedig a Magyar Illetékes Szerv és a Magyar Kijelölt Szervezetek legfeljebb 5 (öt), valamint a Kínai Illetékes Szerv és a Kínai Kijelölt Szervezetek legfeljebb 5 (öt) delegáltja.
1. A Felek a Projekt megvalósítása érdekében együttműködnek, és mindent megtesznek annak érdekében, hogy a Projekt jelen Egyezmény 2. cikkében meghatározott résztvevői egymással együttműködjenek.
2. Felek minden tőlük telhetőt megtesznek annak biztosítására, hogy az Illetékes Szervek és a Kijelölt Szervezetek a jelen Egyezmény keretében folyó együttműködés kapcsán eleget tegyenek az őket kijelölő Fél vállalt kötelezettségeinek.
3. A Felek mindent megtesznek annak érdekében, hogy a Projekt résztvevői a jelen Egyezményben meghatározott szerződéseket egymással a jelen Egyezmény alapján meghatározott határidőben és feltételekkel megkössék.
4. A Felek mindent megtesznek annak érdekében, hogy a Projekt megvalósítása során felmerült bármely nehézséget, akadályt egymással együttműködve, mihamarabb elhárítsanak.
5. A Felek a Projekt megvalósításához kapcsolódó információkat egymás rendelkezésére bocsátják, olyan időpontban, amely lehetővé teszi a Projekt Felek által jóváhagyott határidőben történő megvalósítását, különösen jelen Egyezményben vállalt kötelezettségeik teljesítését.
6. A Felek a jelen Egyezmény alapján egymás rendelkezésére bocsátott információkat kizárólag a jelen Egyezmény szerinti Projekt megvalósításával kapcsolatban jogosultak felhasználni.
7. Semmilyen, a jelen Egyezmény alapján végzett közös munka során keletkezett információ nem adható át harmadik félnek a két Fél Illetékes Szervének előzetes írásbeli hozzájárulása nélkül.
8. Jelen Egyezmény keretei között nem valósul meg Magyarország vagy a Kínai Népköztársaság minősített adatát képező információ átadása. Jelen Egyezmény keretei között nem valósul meg olyan információk átadása, amelyek továbbítását valamelyik Fél államának jogrendje tiltja, vagy amelyek átadása ellentmond a Felek által aláírt nemzetközi egyezményeknek. Nem hozható nyilvánosságra és nem adható át harmadik félnek a két Fél előzetes írásbeli beleegyezése nélkül egyetlen olyan információ sem, amelyet jelen Egyezmény keretein belül átadnak egymásnak, vagy amely annak végrehajtása eredményeként keletkezik.
9. A jelen Egyezményben foglaltak alapján egyik Fél, Illetékes Szerve vagy Kijelölt Szervezete sem tagadhatja meg az adott Félre, Illetékes Szervre vagy Kijelölt Szervezetre nézve kötelező erejű jogszabályban megszabott vagy hatáskörrel rendelkező bíróság által elrendelt információ átadását. Az információt átadó Fél, Illetékes Szerv vagy Kijelölt Szervezet az ilyen esetekben jóhiszeműen együttműködik a másik Féllel, Illetékes Szervvel vagy Kijelölt Szervezettel annak érdekében, hogy az átadás olyan formában történjék, amelynek révén az átadott információ mennyisége a vonatkozó jogszabály vagy az illetékes bíróság vagy hatóság határozata által megkövetelt minimális, valamint a másik Fél, Illetékes Szerv vagy Kijelölt Szervezet számára elfogadható mértékű legyen.
10. Jelen Egyezmény nem érinti a Szerződő Felek egyéb olyan nemzetközi szerződésekből fakadó jogait vagy kötelezettségeit, amelyeknek a Szerződő Felek részesei. Jelen Egyezmény rendelkezései nem idézhetők vagy értelmezhetők úgy, mint amelyek érvénytelenítik vagy bármilyen más módon befolyásolják Magyarországnak az Európai Unió alapját képező szerződésekből származó kötelezettségeit.
11. A Felek megtesznek minden, a saját államuk jogrendje által előírt ésszerű lépést a jelen Egyezmény végrehajtása során megszerzett és/vagy használt szellemi tulajdon, ideértve a gyártási titkok (know-how) védelmére.
12. A Felek, Illetékes Szerveik, a Magyar Kijelölt Szervezetek, a Kínai Kijelölt Szervezetek, a Fővállalkozó és az alvállalkozók időben tájékoztatják egymást a szellemi tevékenység minden, a Felek jogrendje alapján jogi oltalom alá eső eredményéről, és haladéktalanul együttműködnek az oltalom biztosítását célzó megfelelő hivatalos eljárás megindítása érdekében.
13. A jelen Egyezmény alapján létrejövő együttműködés nem érinti a Feleknek, a Felek Illetékes Szervének, a Magyar Kijelölt Szervezeteknek, a Kínai Kijelölt Szervezeteknek, a Fővállalkozó és az általa alkalmazott alvállalkozóknak szellemi tevékenységéhez kapcsolódó azon jogait, amelyeket a jelen Egyezményben foglalt közös tevékenység megkezdése előtt szereztek, vagy amelyek önálló tevékenységük, önálló kutatásuk eredményei, és amelyek gyakorlása elengedhetetlen az Egyezmény szerinti munka teljesítéséhez (alábbiakban: Korábbi Szellemi Tulajdon). A kizárólagos jogok átadását vagy a korábbi szellemi tulajdon használati jogának megadását a Felek jogrendje szabályozza. A szellemi tevékenység eredményeit tartalmazó dokumentumok, illetve az ilyen eredményekről szóló információk átadása nem vonja maga után az ilyen eredményekre vonatkozó kizárólagos jog megszerzését.Vissza az oldal tetejére